RAO v CANTERBURY CITY COUNCIL

RAO v CANTERBURY CITY COUNCIL - [2000] NSWCCA 471 - NSWCCA 2000 case summary — Zoe

[10]

Facts 5 The appellant owned a funeral parlour at 447 Burwood Road, Belmore. The zoning is general business 3(a1) under the Canterbury Planning Scheme Ordinance. 6 On 15 March 1995 the appellant was given notice of conditional development approval for alterations and additions to the funeral parlour. Conditions 6 to 8 were as set out in the charges. 7 The development was a controversial one with adjoining residents. This explains the care taken with respect to preservation and protection of existing trees around the rear boundary of the site. Retention of screening trees had been negotiated between the appellant and Council officers with the appellant taking an active role in discussions about the trees in 1995 and 1996. 8 A detailed landscape plan was prepared, as contemplated by conditions 6 and 8 and it was approved by Council 20 June 1995. Building Approval was issued on 8 May 1995. 9 Building work commenced in about April 1996. The builder was Vincent Caporale who had done previous building work for the appellant. The appellant in turn was his general practitioner. 10 Following a complaint, the informant, a health and building surveyor employed by the Council, inspected the site on 12 September 1996. He observed that the row of conifer pines along the rear that are referred to in condition 6 and depicted in the landscape plan had been cut down to 500mm stumps. 11 Her Honour recorded that the factual issue on the first charge was whether it was proved that the appellant authorised the cutting down of the trees. She found that he had done so. 12 At his inspection on 12 September 1996 the informant also observed that there was no protective barrier around the fiddlewood tree mentioned in condition 7. That tree was located at a corner of a driveway which gave access to eight car parking spaces at the rear of the site. The landscape and building plans show the fiddlewood as "existing fiddlewood to remain". The plans also showed the fiddlewood as incorporated into a 1.5 metre wide garden bed with a six metre driveway one metre away from its trunk. 13 The Council's landscape architect, Ms Tisdell, gave the following evidence about her inspection: On 18 September I inspected the subject premises and observed that no barrier or protection was erected around the Fiddlewood tree during the building works. Contrary to the approved landscaping plan, the fencing alignment and the nature of the proposed fence had now changed. Instead of running along the Leylands Parade boundary, the fence was now indented around the tree, and was no longer a paling fence but a brick wall which required footings. The damage to the Fiddlewood tree consists of root severance caused by the footings. The roots had been severed at less than 1m from the trunk on three sides of the tree. The fourth side of the trees roots are under paving. Consequently the tree is unable to obtain water or nutrients as it no longer has a large enough root area. Had the builder followed the approved plan, a few roots may have been severed but the overall change would have been less. 14 Pearlman J correctly held that condition 7 was drafted with concern to protect the Fiddlewood tree during building operations. Ms Tisdell's evidence was clear proof of breach of that condition, assuming the appellant's responsibility for the breach. 15 With this background I turn to the grounds of appeal that were pressed.

[12]

20 At trial a slightly different point was taken to the one now advanced. It was accepted that there was a development consent and that it was in force under the Act. (A similar concession is made on appeal.) The submission at trial was that the development which was the subject of that consent was still to be carried out. Accordingly, where the summons charged that the consent had been implemented contrary to the specified conditions then it was raising an offence not known to the law because, the consent not having been completed, it could not be said to be implemented contrary to the conditions of the consent. The submission was rejected. Her Honour pointed out that s76(2) speaks of development that "is carried out". Although the work consented to had not been completely finalised, it was in train and the charge alleged departure from conditions regulating the development work itself. 21 The submission is repeated on appeal. In my view her Honour was perfectly correct. Some conditions are capable of breach in the course of implementation of the consent. Stipulations that specific trees are to be retained or protected by "a suitable barrier erected prior to and maintained during building operations" are clearly such as of their nature are capable of infraction during development work. Likewise with a prohibition against cutting down existing trees. 22 On appeal, the charges were also said to be defective because they did not state in effect that the development was being carried out in a manner said to contravene the relevant conditions. I do not agree. Each summons is pleaded inelegantly with its reference to causing the development consent to be implemented contrary to the specified conditions in the nominated manner. But the sense of each charge is perfectly clear, namely that conditions of a (necessary) development consent were infringed in the manner stated at the conclusion of each of the charges. 23 Another variant of the challenge was the submission that the charges made no reference to s76(2) which gave statutory force to the consent conditions contravention of which is an offence by s125(1). Section 76(2) contains a prohibition, but it is section 125(1) that imposes an offence referable to such a prohibition (see Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 at 130). 24 The summons adverts to the offence-creating provision (s125) and the particular instrument taking effect under the Act (the development consent). In my view the omission to mention the provision giving mandatory effect to the condition (s76(2)) is no more fatal than the omission to mention a section of the Crimes Act making a particular offence a crime. Section 76(2) is not an "essential factual ingredient" of the s125 offence, at least in a case such as the present where the charges identify particular conditions of a particular development consent and specify acts said to represent non-compliance with those conditions. 25 Winsloe's Case involved a charge which alleged: an offence against [the Act] in that on or about 1 October 1997 at Dural in the State of New South Wales, you did without authority, prune, lop and [sic] protected by Council's Tree Preservation Order created pursuant to the Hornsby Shire Council Environmental Plan 1994. Bignold J held that the charge failed to state an essential legal ingredient of the offence because it did not allege that the relevant prohibition was "by or under this Act" . 26 In my view Winsloe is clearly distinguishable. The first point that should be made is that the legal requirement is for the information to state "the essential factual ingredients of the actual offence" (John L at 519, emphasis added). The "essential factual ingredients" are to be distinguished from particulars necessary for the defendant properly to defend the charge and also from citation of the legal source of the offence charged. On these distinctions see Cooper at 131-2. 27 Secondly, the defects of the charge in Winsloe were of a different order to those contended for in the present case. The relevant prohibition did not lie in s76(2) of the Act, but in a particular tree preservation order whose statutory underpinning was not stated expressly or impliedly in the charge (in contrast to the present charges as analysed above). 28 Cooper v Coffs Harbour Council, a decision of this Court, is more directly relevant to the present case. The charge was: … that the defendant in breach of s125(1) of [the Act] removed trees … contrary to conditions 14 and 15 of the Notice to Applicant of Determination of a Development Application dated 4 March 1994 in that no consent was obtained from Coffs Harbour City Council for the removal of those trees.

[13]

29 Howie AJ (with whom Hunt CJ at CL and Smart J agreed) held that the charge was a valid one. Like the present case, the charge contained no reference to s76(2) in terms. On the other hand, it did advert in terms to the absence of council consent for the removal of the trees. Howie AJ referred to s43 of the Land & Environment Court Act which was available to overcome any defect in the form of the charge contained in the application and order which were before the Land & Environment Court and before the Court of Criminal Appeal. He also relied (at 132-3) upon the powers available to this Court in an appeal by way of rehearing. 30 In my view the summons and order in each matter were adequate in their specificity to put the appellant on notice of the charges he was facing. The development consent was identified. Its validity was never in issue, for obvious reasons. In these circumstances, absence of reference to the linkage between the allegedly infringed conditions and the environmental planning instrument giving them statutory force did not render the charges bad in law. 31 An alternative attack was based on the absence of an express averment as to the manner or manners in which the appellant caused the development consent to be implemented contrary to the specified conditions. The appellant's complaint did not relate to the factual matters averred at the end of each charge. Rather, it was submitted that it was incumbent on the prosecutor to aver the particular basis of accessorial liability if the case at trial was to be presented on the basis of the appellant having counselled or procured Mr Caporale to cut down the conifers and/or remove the protective barrier from around the Fiddlewood. There is no substance in this point in light of s55 of the Land and Environment Court Act 1979 (see Burrell v Jacenko (1998) 99 LGERA 173). A simple indictment for murder can be the basis for a Crown case that proceeds by alternative routes, including the route of accessorial liability. The affidavits served prior to the hearing made it plain that this would be at least one of the ways in which guilt would be sought to be proved. There was no lack of procedural fairness and, absent that, no basis for challenging the form of the charges on this account. 32 I would not wish this to be read as an endorsement of the form of charge adopted in the present case. The informant who avoids reference to the essential ingredients of s76(2) in a case such as the present is flirting with great danger. Fortunately for the pleader in the present case, there was sufficient in the two charges to convey the essential nub of the contraventions charged.

[16]

Ground 8: (Offences not established beyond reasonable doubt) 33 This appeal is by way of rehearing on the evidence given below. It was accepted that this Court's function is as stated in Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661 at 678. It was also accepted that credibility-based findings of the trial judge are to be examined in light of the well-known principles in cases such as Abalos v Australian Postal Commission (1990) 171 CLR 167. 34 As indicated above, the critical issue on the first charge was whether the appellant authorised the cutting of the trees. 35 It was clearly established that the builder, Mr Caporale cut down the protected conifers, along with two trees in the middle of the back row which were permitted to be removed. 36 Mr Caporale had himself been charged with breaches of the development consent. He shared a common solicitor with the appellant until shortly before the time that he elected to plead guilty in about June 1997. The affidavit used by him in his own sentencing proceedings, being an affidavit dated 9 July 1997, was referred to at the appellant's trial in February 1998. 37 Mr Caporale said that his plumber had told him that three trees at the northern end at the rear of the site were in the way of the laying of pipes. (It is not suggested that this in itself provided any point of relief from the appellant's obligation to comply with the conditions of the development consent while they were extant.) Faced with the drainage problem, Mr Caporale met the appellant on site, told him about the problem, asked what he should do and was told: "Do whatever you have to do but it would look odd to have only three trees remaining. Get rid of the lot." The appellant also told him that he had never wanted the trees there. Because of the car park and paving area, "they should never have been there from the beginning". (Evidence from the Council and its officers also attested to the appellant's opposition to retention of the conifers in the months leading up to the relevant development consent.) 38 Mr Caporale had not seen the development consent at this stage. He told his workers: "Well, you heard the doctor just do what you've got to do". In consequence, all of the conifers were cut down, not just those impeding the laying of the drain. 39 This evidence established the appellant's direct complicity in the acts which constituted the charged breaches of condition 8 and the departure from the approved building plans referred to in conditions 6 and 8. If true, there could not be a clearer case of counselling and procuring breach of the conditions requiring retention of the conifers by the landowner who had received formal notice of the development consent and who never suggested that he was ignorant of its relevant obligations. 40 Pearlman J accepted the evidence of Mr Caporale in her extempore judgment given shortly after hearing submissions. Those submissions had included the most explicit attack on his credibility from senior counsel who represented the appellant at trial (see AB 111G, 119-121). 41 In my view it was well open to her Honour to prefer the evidence of Mr Caporale to that of the appellant and to find the essential step in the first charge proved against the appellant. 42 Her Honour records the appellant's denial of the critical conversation and the appellant's evidence that the first he knew about the tree cutting was when contacted by the Council Health and Building surveyor. Pearlman J gives reasons at page 6 of her judgment as to why she preferred Mr Caporale's evidence, according to the criminal standard. She mentions the appellant's well-established early opposition to keeping the trees, the unlikelihood of Mr Caporale going on a frolic of his own having regard to the relationship between the two men, and the appellant's close involvement in all matters of detail concerning the development. I find these reasons compelling. 43 The appellant invites this Court to review all of the evidence and to conclude that the essential fact of the appellant's express authorisation was not established beyond reasonable doubt. Such review has been conducted, but it does not persuade me of appealable error. 44 The appellant refers in particular to evidence of Carolyn Steele, a witness called in the appellant's case, who said that Mr Caporale had said that he would change his evidence against the appellant if the appellant paid his fines and costs. Mr Caporale denied the suggestion that he had approached Mrs Steele in the terms to which she deposed. He said that all he had asked Mrs Steele was whether there was a way that he could be helped because Dr Rao had said at the outset that whatever happened he would pay the costs. It was put to Mr Caporale that the conversation occurred in November 1997, ie well after the appellant's solicitor had withdrawn his services because of the conflict in instructions and well after Mr Caporale had pleaded guilty. Mr Caporale replied: I can't change my evidence. It's my affidavit so why would I say something stupid like that when I know that it's all written down here. I asked her if she could help me out and she said no.

[18]

50 Evidence was tendered to the effect that the appellant's solicitor was provided with a copy of the letter prior to the time when counsel was briefed to appear in the Court below. The letter was not introduced into evidence nor was the appellant asked any questions regarding it. It is suggested that senior counsel at trial did not receive a copy of the letter. 51 Accepting this, I am unpersuaded that it is in the interests of justice to admit this further evidence in the appeal. Given the joint mess in which the appellant and his builder found themselves in June 1997, the offer in the letter seems a perfectly reasonable one to have been made. For one thing, replacement of the trees would have been relevant as to penalty. The letter does no more than recognise that which was common ground, namely that the trees were removed. It casts no light upon the appellant's involvement or otherwise in the builder's actions. 52 I turn to the second charge. As indicated, the building work was well under way when it was discovered by Ms Tisdell on 18 September 1996 that no barrier was in place around the Fiddlewood tree. Mr Caporale said in his evidence that there was once a mesh and iron stake barrier but that he had removed it in order to build a brick fence for which the appellant had building approval. Although it was not of the essence of the charge, the removal of the mesh had most unfortunate consequences for the Fiddlewood, as observed by Ms Tisdell. 53 The prosecution case in relation to the second charge did not suggest that the appellant had given express instructions to his builder for the withholding of or removal of a protective barrier around the Fiddlewood tree. Rather the matter was prosecuted on the basis that the offence was one of strict liability (see eg Power v Penthill House Pty Ltd (1993) 80 LGERA 247). Her Honour found that it was and this legal conclusion is no longer in dispute in the appeal. 54 Against this background I return to the judgment to see the factual basis upon which the appellant was convicted on the second charge. Her Honour held that there was no evidence that the appellant authorised the builder to ignore the condition about the barrier. She found that the offence was one of strict liability. She then asked whether any culpability of Dr Rao was excused by an honest and reasonable belief in a set of facts which if true would exculpate him. She continued: What are those facts? First that there was a barrier in existence. I do not think it reasonable for Dr Rao to hold the view that there was a barrier in existence of the sort that I have referred to for the protection of the tree. He could not hold that view by visual inspection because visual inspection would, on the evidence of Ms Tisdell, have shown him that there was no such barrier. Was it an honest and reasonable belief on Dr Rao's part to think that because there was a gate and a paling fence and approved hoarding that there was a suitable barrier erected prior to and maintained during building operations in relation to the fiddlewood tree? That there were such structures is clear but whether they were erected in relation to the tree is certainly not clear. I do not think it is reasonable to think that those structures were erected in relation to the tree or that they formed a suitable barrier in relation to it. Therefore I find that the defence of honest and reasonable mistake has not been made out and there is no foundation for it. My conclusion therefore is that the prosecution has made out its case in relation to the fiddlewood tree I find that there was no suitable barrier erected prior to and maintained during building operations as required by condition 7 of the consent and that accordingly, the defendant is guilty of an offence under s125 of the EP&A Act.

[22]

Ground 13 (Error of law in failure to refer in reasons for judgment to respondent's failure to call a particular witness, Tony Carlino) 57 As formulated in the appellant's written submissions, each of these grounds proceeds from the springboard of Fleming v The Queen (1998) 197 CLR 250. Unfortunately, this reveals that the submissions have got off on the wrong foot. 58 Fleming involved a trial on indictment conducted by judge alone that was governed by ss32-33 of the Criminal Procedure Act 1986. The provisions (now found at ss16-17) state: 32 Trial by Judge in criminal proceedings (1) An accused person in criminal proceedings in the Supreme Court or District court must be tried by the Judge alone if; (a) the person so elects in accordance with this section, and (b) the Judge is satisfied that the person, before making the election, sought and received advice in relation to the election from a barrister or solicitor. (2) An election may not be made unless: (a) all other accused persons in the trial also elect to be tried by the Judge alone, and (b) each election is made in respect of all offences with which the accused persons in the trial are charged. (3) An election may be made only with the consent of the Director of Public Prosecutions. (4) An election must be made before the date fixed for the person's trial in the Supreme Court or District Court. (5) An accused person who elects to be tried by the Judge alone may, at any time before the date fixed for the person's trial, subsequently elect to be tried by a jury. (6) Rules of court may be made with respect to elections under this section. 33. Verdict of single Judge (1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter. 59 In Fleming the High Court drew attention (at 262) to the distinction between the "finding [of ultimate guilt or otherwise] that could have been made by a jury" referred to in s33(1) and "the findings of fact on which the Judge relied" which s33(2) required to be included in the judgment. 60 Of direct relevance to the issues in the present appeal, the Court said (at 263-4, emphasis added): [30] Seventhly, if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure, the principle was applied. Upon that hypothesis, there has been a breach of s 33(2) by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 33(2), there has been an error of law which may attract at least the second limb of s 6(1) of the Criminal Appeal Act. The obligation imposed by s 33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded.

[30]

73 The application of s 125(1) is enlivened (relevantly) by a direction by a council authorised by or under the Act, directing something to be done or forbidding something from being done. 74 Each summons identifies a development consent in specific terms relating to premises of which the defendant is the owner, and asserts failure to comply with conditions of the development consent which the summons sets out. In my opinion the conditions amount to directions by the council that something be done, and the conditions in the first summons imply that the council has forbidden something to be done, namely the cutting down of the pine trees. Therefore in this case there are directions and prohibitions by an authorised council that enliven the application of s 125(1). 75 Obviously the directions and prohibitions in a case such as the present one are not absolute and unqualified. Since the applicant for development consent is not obliged to undertake the development once consent is granted, there is no absolute obligation to comply with the conditions of the consent. But in my view, once the development commences, the obligation to comply with the conditions becomes unqualified. That being so, the conditions are properly described as directions and prohibitions for the purposes of s 125(1). 76 Section 125(1) says that a person offending against such a direction or prohibition is guilty of an offence. In my view, a person 'offends against' such a direction or prohibition if · the direction or prohibition applies to that person, and · the person does something, or fails to do something, contrary to the terms of the direction or prohibition (that is, there is relevant contravening conduct). 77 As to the first of these requirements, the conditions do not expressly designate the owner as a person under an obligation to comply with them, but in this case the application for development consent was an application by the defendant as owner of the property which was the subject of the application, and therefore conditions that give directions or make prohibitions are, by implication, addressed to him (but not necessarily only to him). 78 This conclusion is reinforced by s 76(2) of the Act, which has the effect in the present circumstances of prohibiting any person from carrying out a development for which consent is required unless the development is carried out in accordance with the provisions of any conditions subject to which consent has been granted. To the extent that the defendant engaged in carrying out the development and the development was not carried out in accordance with the conditions, there was a contravention of s 76(2). 79 In her reasons for judgment Pearlman J referred to a decision by Talbot J in Power v Coopers Construction Pty Ltd (6 October 1995, unreported), to the effect that 'a condition of a development consent granted under the EP&A Act is not encompassed directly within s 125 simply by reference to it, because s 122(b)(3) refers only to Div 3 of the EP&A and not Div 4 in which s 125 found'. It is true that s 122(b)(iii) states that a reference in Div 3 to this Act includes a reference to conditions subject to which a consent is granted. It does not follow, however, that the absence of a similar definition for the purposes of Div 4 is an obstacle to the view that a condition of a development consent can be a direction or prohibition for the purposes of s 125(1). It is unnecessary, under s 125(1), to rely on any expansive definition of the words 'this Act', since s 125(1) applies (inter alia) to any matter or thing directed to be done or forbidden to be done by or under 'this Act' or by a council authorised by or under the Act. A development consent containing conditions of the kind present in this case is a direction or prohibition by an authorised council rather than under the Act itself. 80 Nothing in Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 is inconsistent with this view. In that case the proceedings were brought on the basis of an alleged infringement of s 76(2) (at 130 per Howie AJ). The issue was not whether proceedings brought under s 125(1) were defective because of the failure to plead the matters referred to in s 76(2). 81 Therefore in my opinion, assuming there is relevant contravening conduct, it is unnecessary to invoke s 76(2) in order to reach the conclusion that the defendant 'offended against' the directions and prohibitions contained in the conditions. This is because the conditions, upon their proper construction, were directions to him. 82 That brings me to the second requirement, that there be relevant contravening conduct. The summonses allege that the defendant caused the development consent to be implemented contrary to the specified conditions. In my view an owner who by his conduct or failure to act has caused a development consent to be implemented contrary to conditions can be said to have 'offended against' the directions or prohibitions contained in the conditions. Again it is unnecessary for the summons to rely on s 76(2) or make a specific assertion that the defendant carried out the development contrary to s 76(2). 83 In my opinion, therefore, the summonses are adequate in their own terms. It follows that I would not join in the criticism of the forms of charge made by the President in paragraph 32 of his judgment. 84 However, if (contrary to my view) s 76(2) is a necessary ingredient in the establishment of liability, I respectfully agree with the President, for the reasons he has given, that the summonses are nevertheless sufficient to identify the essential factual ingredients of the offence in each case. * * * * * * * *

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